6. Personal privacy

The privacy exemption is an important tool for protecting personal information in the government’s hands, but it is overused to block the release of a wider range of government information than necessary. Requesters seeking information about named individuals should craft their requests carefully to maximize the chances they will receive the records.

Some federal agencies use this exemption to block disclosure of information that might identify individuals. However, the exemption should apply only when the individuals’ interests in privacy outweigh the public’s interest in disclosure. The exemption applies to:

personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.

To invoke the exemption, agencies must first find that the information is “similar” to personnel and medical files. The mere location of a document in a government file labeled “personnel” or “medical” does not automatically make it exempt. Courts have been especially deferential to agencies when they attempt to show how documents containing information about any individual is “similar” to a personnel or medical file, finding, for instance, that tape recorded voice inflections are “similar files” that could block the release of a recording even when a transcript is available.⁵⁶

After establishing that a file is “similar” to personnel or medical files, an agency must then balance the personal privacy intrusion that would occur from disclosure of the information against the public’s interest in its disclosure.

When requesting information involving individuals, it can be helpful to address the balance of privacy and public interests in the initial request, spelling out for the agency how public interests served by disclosure outweigh any privacy interests.

Only individuals, not businesses, associations or corporations, can have their privacy intruded upon. But agencies or the courts will find that disclosures about a small group are informative about an individual affiliated with that group. Although dead people do not have privacy rights, the disclosure of information associated with the death of individuals may be found to intrude upon the privacy of survivors by contributing to their grief.

If a federal law or regulation requires disclosure, there is no privacy interest to be considered. For instance, regulations of the Office of Personnel Management, the agency in charge of federal government worker records, make public the following information about past and present employees: names; present and past position titles; present and past grades; present and past annual salary rates including awards and allowances; present and past duty stations; and position descriptions and job standards. That information is public unless its release would interfere with law enforcement programs or severely inhibit agency effectiveness.⁵⁷

The government cannot use the privacy exemption to protect the privacy of people who agree to the disclosure of their records. Requesters can submit statements from people who agree to waive their privacy interests along with the request. Many agencies, such as the FBI, will require this as a matter of policy. The FBI has a waiver form on its FOIA Web site for this purpose. Generally, the government will honor notarized waivers. In two cases judges have ruled that waivers need not be notarized so long as they include the phrase, “I declare under penalty of perjury that the foregoing is true and correct. Executed on [date].”⁵⁸

Congress intended for the balancing test between privacy and public interests to favor public disclosure. However, in 1989 the Supreme Court skewed the balance in favor of privacy in Department of Justice v. Reporters Committee for Freedom of the Press. It ruled that FOIA is only supposed to serve the purpose of letting the public know what the government is “up to.” Therefore, the high court said, the only public interest in disclosure that agencies can consider in the balance is the public’s interest in information about government operations and activities. If the disclosure would reveal nothing about the government, no public interest can be considered in the balance.⁵⁹ That case turned on the privacy arm of the law enforcement exemption (Exemption 7(C)), however. The ruling has been cited extensively in cases that involve Exemption 6 but not 7 (C).⁶⁰

Later, in the 2004 case National Archives and Records Administration v. Favish, the Supreme Court distinguished the protections of the law enforcement privacy exemption 7(C), which protects information if it “could reasonably be expected to cause an unwarranted invasion of personal privacy,” from the narrower standard of Exemption 6, which only protects information when disclosure would constitute a “clearly unwarranted” intrusion on personal privacy.⁶¹

In late 1996, Congress specifically rejected the Supreme Court’s rule in the 1989 Reporters Committee case. In its findings delineated in the Electronic FOIA Amendments of 1996, Congress said FOIA was intended to serve any purpose — implying it is not solely intended to show what the government is “up to.”⁶² The legislative report adopted by both houses stated that Congress rejected the Supreme Court’s interpretation of its purpose in passing the Act. However, neither the Court nor the executive branch has made any adjustments in enforcing the Act based on this finding.⁶³

How the government makes its decisions and carries out (or fails to carry out) its responsibilities are matters of strong public interest. However, the government does not necessarily disclose records simply because they might show the agency in a favorable light, exonerate it from the suspicion of wrongdoing or confirm its culpability. To persuade the government that the public has a strong interest in records, it may be useful to describe why the government should be accountable through disclosure of the requested records, or, more importantly, why there is a legitimate suspicion that actions described in the records may be blame-worthy.

A question that often arises in litigation is whether a requester’s “derivative use” of information constitutes a valid public interest to be weighed in the balance. Reporters may file FOIA requests for the names and addresses of people who are affected by government action in the hope of contacting them for case histories. The government often denies those requests, claiming that names and addresses, by themselves, impart no information about the government.

However, in an eclectic assortment of cases, courts have ordered names and addresses released, finding that the only way the public can learn about the government action is to locate and interview individuals affected by the action. The Supreme Court in 1991 specifically refused to decide whether derivative uses — later use of the same information for other purposes — would intrude upon privacy.⁶⁴

The U.S. Court of Appeals in Atlanta (11th Cir.) ruled that the public has a right to the addresses of recipients of federal disaster relief funds issued by the Federal Emergency Management Agency following several hurricanes in Florida in 2004,⁶⁵ but held that the names of those individuals are protected, as release would violate their personal privacy rights. FEMA has refused to release similar disaster release records related to recipients of funds from floods that devastated much of the Midwest in 2008, citing the same privacy rationale for both names and addresses of the recipients.

In 2005, the U.S. Court of Appeals in Denver (10th Cir.) refused to order the release of electronic maps from FEMA.⁶⁶ The Court held the electronic information could be manipulated to reveal flood insurance policy holders’ names, addresses, flood risk and insurance information. The agency had already provided the maps in printed form.

If your request involves information about named or identifiable individuals, you may want to briefly explain your reasons for seeking the information and why the public interest in disclosure outweighs any possible invasion of privacy. This will allow the agency to determine whether a potential invasion of privacy that could result from disclosure would be justified or “unwarranted.” Similarly, you may want to explain why there is little or no intrusion on privacy. Remember that under FOIA, disclosure to you as a journalist is synonymous with public disclosure. But do not assume the agency will take that for granted.

⁵⁶ New York Times v. Nat’l Aeronautic and Space Ass’n, 920 F.2d 1002 (D.C. Cir. 1990)(en banc).

⁵⁷ 5 C.F.R. § 293.311.

⁵⁸ Summers v. U.S. Dep’t of Justice, 999 F.2d 570 (D.C. Cir. 1993).

⁵⁹ Dep’t of Justice v. Reporters Comm., 489 U.S. 749 (1989).

⁶⁰ See Dep’t of Justice v. Reporters Comm., above.

⁶¹ Nat’l Archives and Records Admin. v. Favish, 124 S.Ct. 1570 (2004).

⁶² Electronic Freedom of Information Act, Public Law No. 104-231 (1996).

⁶³ S. Rep. No. 104-272 (1996) (Additional views of Sen. Leahy).

⁶⁴ Dep’t of State v. Ray, 502 U.S. 164 (1991).

⁶⁵ News-Press v. U.S. Dept. of Homeland Sec., 489 F.3d 1173 (11th Cir. 2007).

⁶⁶ Forest Guardians v. Fed. Emergency Mgmt. Agency, 410 F. 3d 1214 (10th Cir. 2005).